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January 14, 2012

"Barbour ‘At Peace’ with Pardons, but Scandal Rages On"

The title of this post is the headline of this report via Time magazine about the latest state of the debate over Mississippi's former governor's out-the-door pardon spree. Here are excerpts:

Former Mississippi Governor Haley Barbour on Friday defended more than 200 pardons he issued during his final days in office, 41 of which he gave to convicted murderers, sex offenders and child molesters.

“Mississippians are mostly Christians,” Barbour said in a lengthy statement, which he read at a Jackson press conference on Friday. “Christianity teaches us forgiveness and second chances. I believe in second chances, and I try hard to be forgiving. The historic power of gubernatorial clemency by the Governor to pardon felons is rooted in the Christian idea of giving second chances. I’m not saying I’ll be perfect, that no one who received clemency will ever do anything wrong. I’m not infallible, and no one else is. But I’m very comfortable and totally at peace with these pardons, especially of the Mansion inmates.”

Barbour went on to say that he would be perfectly comfortable allowing any of the pardoned “trusties” -– prisoners who worked in the governor’s mansion, some of whom were murderers –- to play with his grandchildren unsupervised. “Historically the trusties sent to work at the Mansion have been murderers, convicted of crimes of passion, as experts say they are the least likely to commit another crime,” he said. Barbour, a Republican, added that 90% of his pardons were recommended by the Mississippi Parole Board and that the clemencies would save the state millions in medical bills because many of the inmates he pardoned were suffering from chronic diseases such as diabetes....

Less than an hour before Barbour released his statement, [Attorney General Jim] Hood, a Democrat, released the preliminary findings of his investigation into the pardons. Of the 181 files Hood’s office has investigated, he says 140 had no public notice prior to Barbour’s pardon. Of the 41 cases that did, 27 were insufficient the notices were published less than 30 days before the pardons. Only seven cases fully met the rule of law, while seven more cases were still under review. But even if Hood could void Barbour’s pardons -– a move that would set a new legal precedent in Mississippi – it’s not clear if it’s possible to reincarcerate the five inmates who’ve already been let out, four of them convicted murderers....

In the court of public opinion, Hood is clearly winning. Barbour, who as of two days ago returned to life as a lobbyist and lawyer, seemed content to let his legacy stand. “I am very comfortable with the decisions I made during my term as Governor as to clemency,” he said. “All this is consistent with the powers given the governor by our Constitution, and I am fully confident the pardons and other clemency are all valid.” Hood, though, accused Barbour of trying to live above the law. “He’s tried to rule the state like Boss Hogg and he didn’t think the law applied to him,” Hood told CNN, referring to the villain in the Dukes of Hazzard series. “This isn’t a partisan issue. Either you followed the constitution or you didn’t.”

Ultimately, Barbour is betting that Mississippians, accustomed to 11th hour gubernatorial pardons, don’t really care about a bunch of ex-convicts and that the glare of the national klieg lights will go away when the next big story breaks. Hood is betting that Mississippians will no longer stand for such outdated practices. But given that the Mississippi legislature tried and failed to curb Barbour’s clemency powers when he pardoned four convicted killers in 2008, Hood and the Democrats may be facing an uphill battle to keep the outrage going long enough to force a change in the law.

Sixth Circuit panel upholds stay of Ohio's next planned execution

Late yesterday (after I was off-line for the night), a Sixth Circuit panel issued this brief order rejecting the state of Ohio's motion to vacate the stay of execution that a US District Judge granted earlier this week. Here is the heart of the order's substantive discussion:

Based upon the analysis of the district court’s January 11, 2012 Opinion and Order granting a preliminary injunction and a stay of execution, as well as the district court’s July 8, 2011 Opinion and Order entered in this same litigation and reported at 801 F. Supp.2d 623 (S.D. Ohio 2011), we conclude that the State’s arguments in support of the emergency motion to vacate the stay are not well-taken. We agree with the district court that the State should do what it agreed to do: in other words it should adhere to the execution protocol it adopted. As the district court found, whether slight or significant deviations from the protocol occur, the State’s ongoing conduct requires the federal courts to monitor every execution on an ad hoc basis, because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death.

The State’s emergency motion to vacate the stay is DENIED. The stay will remain in place until further order from the district court on the hearing set for February 24, 2012.

I assume the state is considering seeking en banc review in the Sixth Circuit and/or Supreme Court review of this execution stay, but it is hard to assess whether the state's likelihood of success with further appeals might justify the effort.

The services provided by private prisons are generally inferior to those found in publicly operated facilities.

Private prison companies spend millions of dollars each year attempting to influence policy at the state and federal level.

The full report, Too Good to be True: Private Prisons in America, includes a comprehensive chart on state and federal privatization levels, as well as detailed graphs and data on the lobbying and contribution activities of Corrections Corporation of America.

Do all agree that "priest deserves to be treated like any other criminal"?

The question in the title of this post is prompted by this local commentary discussing today's upcoming federal sentencing for a priest whose gambling habit turned him into a federal felon. The commentary by Jane Ann Morrison is headlined "Thieving priest deserves to be treated like any other criminal," and here are excerpts which providing background on the case and the sentencing debate:

The thieving, gambling monsignor who stole $650,000, mostly from his church's votive candle fund, has his supporters who want him to receive probation Friday. I'm not one of them.

Nor is the U.S. Department of Probation, which recommends he spend 33 months in prison, which is the low end of the federal sentencing guidelines. The high end would be 41 months. U.S. District Judge James Mahan won't be bound by the probation recommendation when he sentences Monsignor Kevin McAuliffe at 10 a.m. Friday. He can show leniency. Or not.

McAuliffe's attorney, Margaret Stanish, has an uphill battle when she argues his gambling addiction and his mental disorders and depression are reason to give him clemency. She's arguing for probation, so he can stay an active priest and help other gambling addicts. Why should an addicted priest get a pass from prison when other gambling addicts don't? That's unfair.

Nevada federal judges haven't been forgiving with others who steal because they want to gamble with money that's not theirs, partly because sentencing guidelines say gambling addiction is no reason for a judge to reduce a sentence.

Elizabeth "Becki" Simmons, a paralegal in the U.S. attorney's office with a fondness for gambling was sentenced to 30 months in prison by U.S. District Judge Johnnie Rawlinson in 1999. Simmons creating a scheme in which she was able to steal more than $1 million from the U.S. Marshals Service witness fund between 1988 and 1998 by creating fake witnesses. She did the time but never paid restitution. The prosecution noted the divorced mother of two had a pattern of gambling four hours a night, four times a week.

In May, U.S. District Judge Kent Dawson sentenced Ely City Councilman Stephen Marich, a cashier at the First National Bank of Ely, to 78 months in prison. Marich admitted to stealing at least $3.7 million over 12 years. (Auditors estimated it was actually about $5.9 million.) Dawson rejected the "compulsive gambling disorder" defense, noting that Marich was gambling using the bank's money and not his own.

McAuliffe was doing the same. He wasn't gambling his savings, he was gambling money mostly meant for St. Elizabeth Ann Seton Catholic Church in Summerlin, where he was the pastor. Most of the theft was from looting the votive candle fund. He also created false financial records so that St. Elizabeth was underreporting its financial condition and shortchanging the Las Vegas Diocese about $84,500. That's why he pleaded guilty to three counts of mail fraud; he mailed fraudulent documents.

Despite his theft, McAuliffe "left the parish and school debt-free and in excellent financial health," his attorney wrote. A more deceitful image of McAuliffe emerged from Assistant U.S. Attorney Christina Brown's sentencing memo. She noted the priest lied to the FBI when first asked why his income hasn't matched his expenses since 2002....

Should the monsignor be treated different than the thieving Las Vegas paralegal and the thieving Ely bank cashier? Absolutely not.

Though the Catholic Church teaches forgiveness, McAuliffe should be treated like any other criminal, because that's what he is. In court, McAuliffe shouldn't be held to a higher standard because he is a priest. But the priest doesn't deserve a pass from prison.

Without knowing more of the facts, I am disinclined to assert that either probation or nearly three years in prison is a fitting sentence in this case. That said, though I agree that a priest does not "deserve a pass from prison" in all settings, I also resist the notion that a priest "should be treated like any other criminal."

For a wide variety of reasons, I do not think that a priest really is similarly situated to all other federal criminals. In this setting, I would be especially interested to know about, and be responsive to, the "victims" of his crimes: if this priest's parishioners are among his supporters urging a probation sentence (presumably because they genuinely feel he can do more good for them on probation than in prison), my commitment to victim interests at sentencing pushes me toward thinking this man of the cloth ought to get at sentencing some of the very forgiveness that the church preaches and that his parishioners may be eager to demonstrate. (But, then again, maybe my sympathetic sentencing judgment in this case is being unduly influenced by my deep (tongue-in-cheek) concerns about the enduring "War on Christmas" and the "War on Religion" that I hear is being waged in the US.)

UPDATE:This AP story, headlined "Gambling Priest Gets 3 Years Prison in Vegas Case," suggests that the federal district judge sentencing Monsignor Kevin McAuliffe might have considered the occupation of the man he was sentencing an aggravating factor. Here are the interesting details:

Muffled sobs erupted Friday in a courtroom packed with supporters of a Roman Catholic priest who was sentenced to more than three years in federal prison and ordered to repay $650,000 he acknowledged embezzling from his northwest Las Vegas parish to support his gambling habit.

Monsignor Kevin McAuliffe, 59, stood straight and offered no reaction as U.S. District Judge James Mahan credited him for accepting responsibility for looting parish votive candle, prayer and gift shop funds for eight years, but faulted him for "hedging his bet" by blaming it on a gambling addiction....

Defense attorney Margaret Stanish asked the judge for probation so McAuliffe could continue getting counseling for his gambling addiction, keep practicing as a priest and pay restitution to St. Elizabeth Ann Seton Church in Summerlin. He won't get treatment in federal prison, Stanish said. "Is it all about retribution?" she asked the judge. "This court has the ability to fashion a punishment that takes into account not only the offense but the individual. He would not be here but for a gambling addiction."...

But Assistant U.S. Attorney Christina Brown characterized McAuliffe as an opportunist and thief who didn't exhaust his own savings before taking church cash to fund gambling, cars and travel. She accused him of grasping at gambling addiction as "a hollow excuse offered now, when he's desperate for leniency from the court."...

The judge referred to a parish rift over McAuliffe's crime when he said he received approximately 100 letters of support through the priest's defense attorney. Mahan also made part of the court record a stack of letters parishioners sent straight to the court saying McAuliffe should be punished. "I expect the church to forgive him, and the parishioners by and large to forgive him," Mahan said from the bench. "That's different than the justice system."...

Mahan handed down a 37-month sentence — midway between the 33-month minimum and 41-month maximum recommended by federal probation officials — along with the restitution order. The judge also sentenced McAuliffe to three years of supervised release following prison and banned him from gambling. McAuliffe was ordered to begin serving his sentence April 13.

Outside court, longtime parishioner Regina Hauck, 80, called the judge fair but the sentence unfair. She said she wanted forgiveness. "I know him. He's a wonderful priest," Hauck said of McAuliffe. "But I think he's a sick man, and everyone makes a mistake."

Bloomberg's Businessweek has this effective and lengthy review of prosecution and sentencing developments in a "hot" new area of federal corporate crime. The piece is headlined "Foreign Bribery Defendants May Fight More as Cases Falter," and here are excerpts:

Executives facing trial in U.S. courts over accusations of bribing foreign officials may be encouraged to fight charges as prosecutors regroup after two courtroom setbacks and await a verdict in their largest overseas corruption probe targeting individuals.

One of two cases hailed by the government as milestones in its enforcement of the Foreign Corrupt Practices Act was dismissed last year by a judge who said the jury verdict convicting two men at an electricity tower company of bribing Mexican officials was tainted by prosecutor misconduct in “a sloppy, incomplete and notably over-zealous investigation.”

In the first prosecution under the FCPA based on a sting operation, a judge declared a mistrial for four of 22 defendants accused of participating in a fake $15 million weapons deal involving Gabon. A separate trial is under way for a second group of defendants.

The 2011 outcomes will make individual defendants in FCPA cases more confident in contesting charges, in particular because they may face long prison terms under the plea deals the Justice Department offers, even as corporations continue to self-report and settle, said Philip Urofsky, a former FCPA prosecutor who now defends cases at Shearman & Sterling LLP. “If a defendant is able to finance a significant defense, they can really put the government to the test,” Urofsky said in a phone interview.

In a crackdown on overseas bribery that started during the Bush administration, the government settled 57 cases against companies from 2005 through 2011 without trial, reaping $4.1 billion for the U.S. treasury, according to Justice Department data. A push to prosecute more individual defendants during the same period has produced mixed results, with some beating charges outright and others getting less punishment than prosecutors sought.

Of the 93 people charged over the past seven years, including 43 in 2009 alone, 41 pleaded guilty and six were convicted at trial, according to Shearman & Sterling data. Four defendants are fugitives, one was exonerated and three had their cases dismissed. Of the remainder, 38 either have a trial date scheduled or are awaiting one. The 31 defendants who’ve been sentenced got an average of 2 years and 2 months in prison.

Laura Sweeney, a spokeswoman for the Justice Department, said the government has had “great success” against individuals since increasing its enforcement actions in 2009. “Our record speaks for itself, with numerous guilty pleas and trial convictions, and substantial sentences imposed, including a 15-year prison sentence just three months ago on FCPA charges,” she said in an e-mailed statement. “These many successful prosecutions of individuals are in addition to our numerous corporate prosecutions.”...

The 1977 law bars companies or individuals regulated or based in the U.S. from paying bribes to foreign officials to win business. Foreign companies and nationals also can be prosecuted if their corrupt acts were committed in the U.S. Corporations started to approach the Justice Department about possible FCPA violations and to negotiate settlements beginning about 2003, when, as part of the Sarbanes-Oxley Act, top executives were required to certify that they weren’t aware of any fraud at their companies, Urofsky said.

The multimillion-dollar settlements the Justice Department reached with public companies led to more resources, including prosecutors and FBI agents, getting assigned to FCPA cases, Urofsky said. That in turn brought about more investigations of smaller, closely held companies and individuals and an uptick in FCPA trials the past two years, he said. “Corporations will look at it as part of business management and settle as long as the costs are reasonable and don’t break the bank,” Urofsky said. “An individual can go to jail -- they have a lot more tangible skin in the game.”...

Even when the government secures a conviction, some judges have been disinclined, over the objections of prosecutors, to impose significant sentences for foreign bribery crimes. The U.S. sought 10-year prison terms for a Hollywood couple convicted in 2009 of bribing a Thai government official to get a contract to run a Bangkok film festival.

In August 2010, U.S. District Judge George Wu in Los Angeles said while sentencing Gerald Green and his wife, Patricia, to six months behind bars that their crimes weren’t as serious as other foreign bribery cases. That was after a Justice Department lawyer argued that it defied logic for the couple to get a more lenient sentence than other defendants in foreign bribery cases who pleaded guilty and cooperated.

Federal prosecutors in New York sought the maximum 10-year prison term after winning a conviction against Frederic Bourke for conspiring to pay bribes to leaders in Azerbaijan in what they called one of the most corrupt investment schemes in the former Soviet Union. Instead, Bourke, the co-founder of handbag maker Dooney & Bourke, got one year and one day in prison.

At Bourke’s sentencing in November 2010, U.S. District Judge Shira Scheindlin cited Bourke’s “lifetime of good works” for a sentence that was far less than the 57 months to 71 months recommended by U.S. sentencing guidelines. The judge said that while she agreed with prosecutors that Bourke helped promote a deal he knew was corrupt, there was “slim proof” that bribes were ever paid.

Two executives charged under the FCPA didn’t fare as well when they fought back. The former president of Miami-based Terra Telecommunications Corp., Joel Esquenazi, was sentenced in October to 15 years in prison after he was found guilty at trial of bribing officials at a state-owned Haiti company. The sentence was the longest ever in an FCPA case. A co-defendant received a seven-year sentence.

Many individual defendants still choose to settle, rather than fight, and avoid the risk of a trial. In September, the former chief executive officer of Latin Node Inc., a Miami-based telecommunications company, was sentenced to 46 months in prison after pleading guilty to bribing Honduran government officials, and last month, a United Arab Emirates man, who was extradited to the U.S., got 30 months after pleading guilty to bribing Iraqi officials and paying kickbacks under the UN oil for food program.

“They probably have had more successes than failures,” Davis, the Miller & Chevalier attorney, said of the Justice Department’s FCPA unit. “They’re still very committed to charging individuals because of the deterrent effect.”

January 12, 2012

Noticing the state/local divide over marijuana policies

The tension between federal pot prohibitions and some state medical marijuana legalization is well known to readers of this blog (and seem only likely to grow in the future). But this AP article, headlined "Many US Communities Are Blocking Medical Marijuana," highlights some of the tensions between state and local authorities. Here is how the piece starts:

More and more states are saying yes to medical marijuana. But local governments are increasingly using their laws to just say no, not in our backyard.

In California, with the nation's most permissive medical marijuana laws, 185 cities and counties have banned pot dispensaries entirely. In New Jersey, perhaps the most restrictive of the 17 states that have legalized marijuana for sick people, some groups planning to sell cannabis are struggling to find local governments willing to let them in.

Dispensaries have also been banned in parts of Colorado and have run into opposition in some towns in Maine.

Local politicians have argued that pot is still illegal under federal law, that marijuana dispensaries bring crime, and that such businesses are just fronts for drug-dealing, supplying weed to people who aren't really sick.

Cities and towns are prohibiting dispensaries outright or applying zoning ordinances so strict that they amount to the same thing. The ordinances typically set minimum distances between such businesses and schools, homes, parks and houses of worship.

This new AP story, which is headlined "Miss. court halts quick release of some pardoned," reports on an interesting new development in the controversy over the remarkable use of clemency power by Mississippi's (now-former) Governor on his way out the door. Here are the basics:

A Mississippi judge has temporarily blocked the release of 21 inmates who'd been given pardons or medical release by Republican Haley Barbour in one of his final acts as governor.

Circuit Judge Tomie Green issued an injunction late Wednesday at the request of Democratic Attorney General Jim Hood. Hood said he believes Barbour might've violated the state constitution by pardoning some inmates who failed to give sufficient public notice that they were seeking to have their records cleared.

Barbour said in a statement Wednesday, a day after leaving office, that he believes people have misunderstood why he gave reprieves to more than 200 inmates.... In Wednesday's statement, Barbour said: "The pardons were intended to allow them to find gainful employment or acquire professional licenses as well as hunt and vote. My decision about clemency was based upon the recommendation of the Parole Board in more than 90 percent of the cases."...

Barbour spokeswoman Laura Hipp was not immediately available for comment about Green's decision to temporarily block release of the 21 inmates. It was not clear how many of the 21 are convicted killers.

Section 124 of the Mississippi Constitution says any inmate seeking a pardon must publish notice about his intentions. Before the governor can grant it, the notice must appear 30 days in a newspaper in or near the county where the person was convicted.

Hood said it's not clear whether all the inmates pardoned by Barbour met the publication requirement, and that he believes it's likely that some did not. "It's unfortunate Gov. Barbour didn't read the constitution," Hood said Wednesday.

Mississippi Department of Corrections spokeswoman Suzanne Singletary told The Associated Press that five inmates let out over the weekend are the only ones on Barbour's list who had been released as of Wednesday evening. She said the 21 were still in custody because processing paperwork generally takes several days. Among other, things, state law requires the department to give victims 48 hours' notice before an inmate is released.

When and how will Padilla retroactivity issues get to SCOTUS?

The question in the title of this post flows from this effective story by Michelle Olsen at Appellate Daily. The piece it titled "Circuit Split Watch: Variations on the Padilla Theme," and here are highlights:

The U.S. Supreme Court will soon have the chance to revisit Padilla v. Kentucky, its 2010 decision holding — at the intersection of criminal and immigration laws — that the Sixth Amendment requires attorneys to inform their clients about the possible deportation consequences of a guilty plea.

In recent months, three federal appellate courts split 2-1 on whether Padilla applies retroactively, teeing the cases up for possible review by the Supreme Court. All three were denied rehearing en banc.

Chaidez v. United States, from the U.S. Court of Appeals for the 7th Circuit, is already the subject of a petition for certiorari.... Judge Joel Flaum, writing for himself and Senior Judge William Bauer, explained that Padilla is not retroactive, meaning that it only applies to cases on direct review, not to a coram nobis motion or other collateral attack. The direct line of Chaidez’s criminal case had been final for years, when she pled guilty and did not appeal.

In Judge Flaum’s view, Padilla announced a groundbreaking new rule that lower courts had not anticipated. In fact, Flaum noted, federal courts before Padilla had unanimously held that plea counsel is not constitutionally required to warn clients of immigration consequences.

Judge Williams disagreed, finding that Padilla applies retroactively to collateral review. Risk of deportation is important information to know before entering a plea. Williams urged that “prevailing professional norms at the time of Chaidez’s plea required a lawyer to advise her client of the immigration consequences of a guilty plea.” Under Supreme Court precedent cited by Williams, such norms have long been relevant to whether counsel’s representation was reasonable.

The 7th Circuit panel knew that its decision would create a circuit split. Less than two months earlier, the 3rd Circuit in United States v. Orocio determined, like Judge Williams, that Padilla applied retroactively....

Joining the 7th Circuit and making the split 2-1, the 10th Circuit in United States v. Chang Hong ruled that Padilla is not retroactive. Although not precedent, a footnote in United States v. Hernandez-Monreal, a 4th Circuit unpublished opinion from 2010, stated, without analysis, that “nothing in the Padilla decision indicates that it is retroactively applicable to cases on collateral review.”

January 11, 2012

"Did Haley Barbour's pardon spree go too far?"

The title of this post is the headline of this effective new article from the Christian Science Monitor discussing the controversy over the remarkable use of clemency power by Mississippi's (now-former) Governor on his way out the door. Here are excerpts:

A law-and-order Republican governor, Haley Barbour of Mississippi, has given full pardons or clemency to 208 inmates, including 14 convicted murderers, setting off a political uproar over the limits of executive power in the traditionally patriarchal South....

Mr. Barbour, a popular two-term governor who was term-limited from serving more, signed the pardons before leaving office on Tuesday. The surprise spree caught both Republicans and Democrats off stride, and it suggested that Barbour, who had flirted with running for the White House last year, may be leaving politics for good....

[T]he pardons have scrambled traditional political roles in the state, with the Republican Barbour going easy on scores of convicted criminals and Democrats clamoring to bolster law and order. Toward that end, they reintroduced a bill to curb gubernatorial pardon power. “It seems to kind of fly in the face of the Haley Barbour politician that we all know, because he is a strong law-and-order guy,” says Curtis Wilkie, a journalism professor at Ole Miss in Oxford.

Barbour has refused to comment on the pardons. Several are high-profile convicts, including Jackson socialite Karen Irby, convicted of manslaughter in 2010 for the DUI-related deaths of two doctors; Earnest Scott Favre, older brother of retired NFL quarterback Brett Favre, who was convicted for the DUI-related death of his friend; and Azikiwe Kambule, a South African expat convicted in a 1996 carjacking and murder case.

Eighty of the pardoned prisoners had committed crimes including murder, homicide, manslaughter, rape, aggravated assault (including one on a police officer), and armed robbery. Thirty-two of those prisoners received full pardons, meaning they were set free without conditions. Other pardoned prisoners include inmates who worked at the Governor's Mansion under a “good behavior” program that traditionally has been a route to clemency or pardon....

The torrid pardon pace by Barbour outdistanced other Mississippi governors by a wide margin. Former Gov. Kirk Fordice had the previous high, pardoning 13. Before this week's pardons, Barbour had previously signed the release papers for 10 convicted criminals, none of whom have caused any trouble, the Mississippi Department of Corrections commissioner, Christopher Epps, told Mississippi reporters....

Last summer, Barbour was hailed by the National Association for the Advancement of Colored People as a "shining example" for commuting the life sentences of two African-American women who had spent 16 years in prison for an armed robbery that yielded $11....

In Mr. Favre's case, he had been sentenced originally to a year of house arrest but was ordered to serve a suspended 15-year prison sentence after he left his house to go fishing. In pardoning Mr. Kambule, Barbour may have heeded pleas from his attorneys that there was no evidence that the then-teenager fired the fatal shots that killed a Madison County woman in 1996, a crime for which Kambule was sentenced to 35 years in prison.

"There are a whole lot of people in prison who should not be there," Chokwe Lumumba, a Jackson City councilman, told The Clarion-Ledger. "Obviously, murder is the kind of thing you put people in [prison] for ... but that doesn't mean that people cannot be rehabilitated."

Other Mississippians say Barbour simply went too far. "He will not comment on anything,” Tiffany Ellis Brewer, sister of the woman slain by the pardoned Mr. Gatlin, told CNN. “We have no answers as to why he has done this. I would like to think he did not have all of the facts of the case.... Apparently, we haven't had a really good man for our governor."

Two great reads (and additional information) on what's going on in Mississippi come from PS Ruckman at his Pardon Power blog:

The signs of a last-minute rush abound. 63 percent of the warrants do not even list the sentences that were given to recipients. Other critical dates are missing right and left. A man named Turner was pardoned. But he has actually been dead for some time, since 1999. The warrant doesn't say when he was convicted, if he died in prison, or anything about why he was pardoned. Which seems odd given the fact that, well, he is dead, and given the fact that someone took the time to note an arsonist from the 1960's was now living a "good, productive and useful life."...

[This] was a classic example of just about every thing the pardon power should not be. The only thing that seems to be missing, for now, is some hint of "politics" (donors, supporters, friends, relatives, inside influence and the like). But, give it time. Barbour clearly could have spread these decisions over a period of months, if not years, making each one a little more well-considered, a little less suspicious looking and -- for those who really were deserving -- something barely worth public celebration. But, no, a Republican governor, in the South, and potential presidential nominee has to keep up appearances.

One thing we can say for certain, now, Barbour will not be considering a run for the presidency any time in this lifetime.

Federal judge again halts Ohio execution because state not following its own protocol

As reported in this piece from the Columbus Dispatch, "U.S. District Judge Gregory Frost today blocked next week’s scheduled execution [in Ohio] of convicted murderer Charles Lorraine because the state has not adhered to its own execution policies." Here are the basics:

Lorraine, 45, was slated to be executed Jan. 18 for murdering 80-year-old, bedridden Doris Montgomery and her 77-year-old husband, Raymond, in 1986.

However, Frost, who previously raised serious questions about Ohio’s execution procedures, ruled today that the Ohio Department of Rehabilitation and Correction didn’t properly document the drug used or check the medical chart of inmate Reginald Brooks when he was lethally injection on Nov. 15 at the Southern Ohio Correctional Facility near Lucasville.

The ruling today from Judge Frost, in a case now captioned In Re Ohio Execution Protocol, runs 23 pages and can be downloaded below. Here is how it gets started (emphasis in original):

This case is frustrating.

For close to eight years, the Court has dealt with inmate challenges to the constitutionality of Ohio’s execution protocol. During that time, the litigation has morphed from focusing primarily on allegations of cruel and unusual punishment to allegations of equal protection violations. Ohio has been in a dubious cycle of defending often indefensible conduct, subsequently reforming its protocol when called on that conduct, and then failing to follow through on its own reforms. Occasionally in this litigation, state agents lie to the Court. At other times, different state actors impress this Court with their sincere devotion to carrying out the unenviable task of executing death-sentenced inmates within constitutional parameters. As a result of laudable effort by the various state actors involved -- motivated either by duty, embarrassment, the decisions of this Court, or a combination of any of the foregoing -- Ohio finally arrived at a protocol that on paper satisfies every Eighth and Fourteenth Amendment challenge thrown against it. Then once again Ohio decided to carry out the protocol in a manner that simply ignores a key component of the execution scheme.

The end result is that rather than proceeding to a final conclusion in this case that would enable Ohio to proceed to fulfill its lawful duty to execute inmates sentenced to death free from this ongoing litigation, Ohio has unnecessarily and inexplicably created easily avoidable problems that force this Court to once again stay an execution.

This is frustrating to the Court because no judge is a micro-manager of executions and no judge wants to find himself mired in ongoing litigation in which he must continually babysit the parties. But the law is what it is, and the facts are what they are. The Constitution demands that a judge honor the rights embodied in that document, that a judge appreciate the nuance involved in those rights rather than adopting a constitutionally irresponsible, “big-picture, close enough” approach, and that a judge follow the evidence presented by the parties to whatever principled conclusion it leads–no matter how easily avoided and frustrating that conclusion may be. In other words, if Ohio would only do what it says it will do, everyone involved in this case can finally move on.

"Marijuana Smoke Not as Damaging as Tobacco, Says Study"

The title of this post is the headline of this report from ABC News, which seems sure to add fire to arguments that pot ought to be legalized and regulated like alcohol and tobacco. Here is how the piece starts:

Occasional marijuana use does not appear to have long-term adverse effects on lung function, according to new research published in the Journal of the American Medical Association.

Researchers from the University of Alabama at Birmingham and University of California at San Francisco analyzed marijuana and tobacco use among 5,000 black and white men from the national database, CARDIA (Coronary Artery Risk Development in Young Adults study), which was intended to determine heart disease risk factors over a 20-year period.

Measuring participants' lung function for air flow and lung volume five times throughout the study period, the researchers found that cigarette smokers saw lung function worsen throughout the 20-year period, but marijuana smokers did not. Only the heaviest pot smokers (more than 20 joints per month) showed decreased lung function throughout the study.

"The more typical amounts of marijuana use among Americans are occasional or low levels," said Dr. Stefan Kertesz, assistant professor of medicine at the University of Alabama at Birmingham and principle investigator of the study. "From the standpoint of being a scientist, these data suggest that low and moderate range use of marijuana do not do long-term harm."

But, he cautioned, the research should not be viewed as a green light to toke up. a primary care doctor, I see patients who have problems with drugs and alcohol," Kertesz said. "This is a complicated substance that has a lot of potential effects on human life and well-being."

Among the study participants, the average pot smoker lit up two to three times per month. The average tobacco user smoked eight cigarettes per day. Those who smoked less than the heaviest actually saw a slight increase in air flow and lung function.

Lots of sentencing news of note via The Crime Report

As I have said before, and as I am happy to say again, all sentencing law and policy fans should be sure to make The Crime Report a daily read. To reinforce this point, check out just some of these new posts from over there in the last 24 hours:

January 10, 2012

Head of NAACP talking up campaigns to abolish death penalty in states

As reported in this AP article, "NAACP President Benjamin Jealous said Tuesday that Maryland needs to abolish capital punishment to help lead the way in ending it in other states." Here is more from this report:

“People in this country care about fairness,” Jealous said at a news conference in Annapolis with other civil rights leaders and state lawmakers opposed to capital punishment. “They’re outraged about what happened to Troy Davis. They want to see our country join the rest of the western world and abolish the death penalty. In order to get there, Maryland has to do it.”... Some Maryland lawmakers will seek a repeal in the legislative session that begins Wednesday. They say they have a majority of support in both the House and Senate, but they say they are one vote shy on a Senate committee to move the bill to a full vote.

“We’ve abolished it in Illinois in recent years; we’ve abolished it in New Jersey in recent years; we’ve abolished it in New Mexico in recent years, and there is no reason why it has not been abolished here, except for a few politicians who have gotten in the way,” Jealous said.

Jealous said the Baltimore-based NAACP is focusing on two other states where they believe there is opportunity for repeal, Connecticut and California. “Even in Georgia, people see an opportunity to start sort of chipping away at the death penalty in a way that we haven’t seen, because the state is still on fire” over the Davis case, Jealous said....

Maryland Gov. Martin O’Malley, a death penalty opponent, pushed hard for repeal in his first term, but the measure stalled in the state Senate. Instead, lawmakers compromised by restricting capital punishment to murder cases with biological evidence such as DNA, videotaped evidence of a murder or a videotaped confession. Maryland has five men on death row, and five inmates have been executed since Maryland reinstated the death penalty in 1978. Wesley Baker was the last person to be executed in Maryland, in December 2005.

I am intrigued to hear the claim that Georgia "is still on fire" in the wake of the Troy Davis execution, and I wonder what it might take to quench that fire. More concretely, I am also intrigued to see if the NAACP is really going to devote a significant share of resources and political energies to this issue in the months ahead. Significant and sustained NAACP involvement in state DP abolition movements might "move the needle" in some settings, perhaps especially in a state like California where a referendum will allow voters to weigh in on the death penalty directly.

The Eleventh Circuit has an interesting and seemingly important ruling concerning the application of the child porn federal sentencing guidelines today in US v. Spriggs, No. 10-14919 (11th Cir. Jan 10, 2012) (available here). Here is the start of the opinion and two key paragraphs from the heart of the ruling:

Appellant Timothy Spriggs pled guilty to one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). At sentencing, over Spriggs’s objection, the district court applied a five-level enhancement for distribution of illicit images for the receipt, or expectation of receipt, of a non-pecuniary thing of value. See U.S. SENTENCING GUIDELINES MANUAL § 2G2.2(b)(3)(B) (2010). Spriggs argues that no evidence supports application of the enhancement. We vacate the sentence and remand because, although we find evidence that Spriggs distributed illicit images, there is insufficient evidence to support the other elements of the five-level enhancement....

The Eighth Circuit applies the five-level enhancement if the defendant “expected to receive a thing of value — child pornography — when he used the file-sharing network to distribute and access child pornography files.” United States v. Stultz, 575 F.3d 834, 849 (8th Cir. 2009). Because file-sharing programs enable users to swap files, the court reasoned that no additional evidence is needed to establish the type of transaction contemplated in the Guidelines.

We have a different view, however, of the function and operation of filesharing programs than that of the Eighth Circuit. File-sharing programs exist to promote free access to information. Generally, they do not operate as a forum for bartering. For example, file-sharing programs permit a person to access shared files on peer computers regardless of whether the person in turn shares his files. The files are free. Because the transaction contemplated in the Guidelines is one that is conducted for “valuable consideration,” the mere use of a program that enables free access to files does not, by itself, establish a transaction that will support the five-level enhancement. Accordingly, we disagree with the approach taken by the Eighth Circuit.

Lots of not-quite-sentencing criminal justice stuff from SCOTUS

The Supreme Court today issued four opinions in cases argued this past Fall, and three of the group involve criminal justice issues. This SCOTUSblog post provides a great run down of the basics, along with links to the opinions:

Justice Sotomayor announced the first opinion of the morning, inGonzalez v. Thaler. By a vote of eight to one, the Court affirmed the decision of the Fifth Circuit, holding that Section 2253(c)(3) is a mandatory but nonjurisdictional rule. The failure of a certificate of appealability to “indicate” a constitutional issue does not deprive a court of appeals of jurisdiction to adjudicate the appeal. Moreover, the Court held, for a state prisoner who does not seek review in a state’s high­est court, the judgment becomes “final” for purposes of Section 2244(d)(1)(A) upon “expiration of the time for seeking such review.” The petitioner’s appeal in this case was therefore untimely. Justice Scalia filed a dissenting opinion.

Justice Breyer announced the second opinion, Minneci v. Pollard. Also by a vote of eight to one, the Court reversed the Ninth Circuit’s decision, holding because in this case, state tort law authorizes adequate alternative damages actions no Bivens remedy can be implied. Justice Scalia wrote a separate concurring opinion, which was joined by Justice Thomas, but also joined the Court’s opinion. Justice Ginsburg filed a dissenting opinion....

The final opinion issued today was in Smith v. Cain, announced for the Court by Chief Justice Roberts. Once again by a vote of eight to one, the Court reversed the decision of the Louisiana state court and remanded the case for further consideration. The Court held that the substantial Brady claims in the case require a reversal of the petitioner’s conviction. Justice Thomas filed a dissenting opinion.

Bivens, Brady and habeas issues are not of direct concern for sentencing law and policy, but there are still plenty of reasons I hope to soon find time to give all these opinions a close read. In the meantime, perhaps readers can and will use the comments to highlight if there are any must-see parts of these rulings.

"Paying a Price, Long After the Crime"

The title of this post is the headline of this New York Times op-ed by Professors Alfred Blumstein and Kiminori Nakamura. Here are excerpts:

A stunning number of young people are arrested for crimes in this country, and those crimes can haunt them for the rest of their lives. In 1967, President Lyndon B. Johnson’s Crime Commission found that about half of American males could expect to be arrested for a nontraffic offense some time in their lives, mostly in their late teens and early 20s. An article just published in the journal Pediatrics shows how the arrest rate has grown — by age 23, 30 percent of Americans have been arrested, compared with 22 percent in 1967. The increase reflects in part the considerable growth in arrests for drug offenses and domestic violence.

The impact of these arrests is felt for years. The ubiquity of criminal-background checks and the efficiency of information technology in maintaining those records and making them widely available, have meant that millions of Americans — even those who served probation or parole but were never incarcerated — continue to pay a price long after the crime. In November the American Bar Association released a database identifying more than 38,000 punitive provisions that apply to people convicted of crimes, pertaining to everything from public housing to welfare assistance to occupational licenses. More than two-thirds of the states allow hiring and professional-licensing decisions to be made on the basis of an arrest alone.

Employers understandably want to protect their employees and customers from risk. Yet at the same time, there is a growing public interest in facilitating job opportunities for those who have stayed crime-free for a reasonable period of time.... Last April, Attorney General Eric H. Holder Jr. urged state attorneys general to review laws and policies “to determine whether those that impose burdens on individuals convicted of crimes without increasing public safety should be eliminated.”

It is well established that the risk of recidivism drops steadily with time, but there is still the question of how long is long enough. By looking at data for more than 88,000 people who had their first arrest in New York State in 1980, and tracking their subsequent criminal histories over the next 25 years, we estimate the “redemption time” — the time it takes for an individual’s likelihood of being arrested to be close to that of individuals with no criminal records — to be about 10 to 13 years. We also found that about 30 percent of the first-time offenders in 1980 were never arrested again, in New York or anywhere else.

Employers could apply their own judgments around those estimates, but the real problem is the state and local rules — often embedded in statutes — that restrict employment or licensing for the rest of the individual’s life. In New York, former offenders can be forever denied licenses for certain jobs, ranging from beer distributor to real estate broker. Such “forever rules” — which fall heavily on minorities, who are particularly likely to be arrested — are inherently unfair.

We propose that the “forever rules” be replaced by rules that provide for the expiration of a criminal record. We believe it is unreasonable for someone to be hounded by a single arrest or conviction that happened more than 20 years earlier — and for many kinds of crimes, the records should be sealed even sooner. The state, as well as private employers, should face a heavy burden to demonstrate the need for any rule that imposes consequences on someone who has remained crime-free decades after a single offense....

Policies that encourage employers to hire people who made a mistake in the past but have since rebuilt their lives would not only help those people, but also our economy and our society. With unemployment so high, we need to make it easier, not harder, for people to find jobs. And by embracing the principle that having paid the price for crime, there should be a limit on the time they are made to suffer, we would be giving true meaning to the ideals of rehabilitation and redemption.

January 9, 2012

On way out door, Mississippi Gov. Haley Barbour pardons five serious offenders who worked at the Governor's Mansion

This AP story, headlined "Miss. Gov. Barbour Pardons 4 Killers," reports on what seems sure to be a high-profile state clemency story in the days and weeks ahead. Here are the basics:

Outgoing Mississippi Gov. Haley Barbour has pardoned at least four convicted killers who worked as inmate trusties at the Governor's Mansion, including a man who was denied parole less than two weeks ago.

Relatives of three victims told The Associated Press on Monday that state corrections officials notified them over the weekend that the men convicted in the crimes were to be released this past Sunday. Barbour's office hasn't responded to numerous messages. Barbour, a Republican, leaves office on Tuesday.

Copies of the pardons filed with the Mississippi Secretary of State's office were released Monday. They show he has pardoned at least five men, the convicted killers and a man serving life for robbery.

The inmates are David Gatlin, convicted of killing his estranged wife in 1993; Joseph Ozment, convicted in 1994 of killing a man during a robbery; Anthony McCray, convicted in 2001 of killing his wife; Charles Hooker, sentenced to life in 1992 for murder; and Nathan Kern, sentenced to life in 1982 for burglary after at least two prior convictions.

The pardons outraged victims' relatives as well as Democratic lawmakers, who called for an end to the custom of governors' issuing such end-of-tenure pardons. "Serving your sentence at the Governor's Mansion where you pour liquor, cook and clean should not earn a pardon for murder," Public Service Commissioner Brandon Presley, a Democrat, posted Monday on his Facebook page.

While Barbour's office hasn't responded to messages about the pardons, he told the AP for a 2008 story that releasing the trusties who live and work at the mansion is a tradition in Mississippi that goes back decades. Trusties are prisoners who earn privileges through good behavior....

Democrats have pounced on the pardon.... Members of the Mississippi House Democratic Caucus will hold a press conference at 3 p.m. today at the Mississippi Capitol Rotunda. They plan to announce legislation to prevent the premature pardon or release of murderers. Democratic members of the legislature will be joined by family members of victims.

Barbour created a similar stir by releasing convicted killer Michael Graham in 2008. The Republican later defended the move as "the custom" of governors to cut short the sentences of the mansion's inmate workers if they behave.

Barbour's three predecessors, dating back to 1988, gave some type of early release or pardon to a total of 12 such prisoners. All but two of them had been convicted of murder. One was serving time for forgery and another for armed robbery and aggravated assault.

Mississippi Corrections Commissioner Chris Epps told the AP for a 2008 story that the inmates who end up working at the Governor's Mansion are often convicted murderers because they are the ones who serve long enough sentences to build the trust needed for such a task.

An interesting and potentially important reasonableness review decision was handed down by a Sixth Circuit panel this morning in US v. Bistline, No. 10-3106 (6th Cir. Jan. 9, 2012) (available here). Folks concerned with the operation of reasonableness review or with child porn sentencing should be sure to read this thoughtful opinion in full. Here is how the opinion gets started along with one of many notable passages from the heart of the opinion:

Richard Bistline pled guilty to knowingly possessing 305 images and 56 videos of child pornography on his computer. Many, if not a majority, of those images and videos depicted 8- to 10-year-old girls being raped by adult men. Under the Sentencing Guidelines, Bistline’s recommended sentence was 63 to 78 months’ imprisonment. The district court rejected that recommendation and instead sentenced Bistline to a single night’s confinement in the courthouse lockup, plus ten years’ supervised release. The United States contends that Bistline’s sentence is substantively unreasonable, arguing that the district court improperly rejected the relevant sentencing guideline as “seriously flawed” and that Bistline’s sentence fails to reflect the factors recited in the sentencing statute. We agree, and vacate his sentence....

The district court made a number of observations with respect to the seriousness of this offense. Many of them served to diminish it. The court did say that the images on Bistline’s computer were “horrendous,” and that the “production of child pornography and the distribution of it is an extremely serious offense, one which should be punished accordingly.” But notably omitted from that recitation (and virtually unpunished in this case) was the crime of possession of child pornography. Indeed, the court said there are “significant differences . . . in the degree of culpability in the chain of events that leads to the display of child pornography[,]” with the “most culpable” persons being “those who are involved in actually performing these acts and photographing them.” We agree with that statement so far as it goes. That the producers of child pornography are more culpable, however, does not mean that its knowing and deliberate possessors are barely culpable at all.

Released today with a relatively uneventful Supreme Court order list are two short opinions in Cash v. Maxwell, a habeas case from the Ninth Circuit in which the Court denied cert review. Justice Scalia issued this dissent, which Justice Alito joined, concluding this way (emphasis in original):

Justice Sotomayor responds with this opinion ending this way (footnote omitted):

Here, the Ninth Circuit recognized that 28 U. S. C. §2254(d)(2) imposes a “daunting standard — one that will be satisfied in relatively few cases.” 628 F. 3d, at 500 (internal quotation marks omitted). The court below found that standard met only after describing, in scrupulous detail, the overwhelming evidence supporting the conclusion that Storch falsely testified at Maxwell’s trial — attempting to manipulate the integrity of the judicial system as he did in numerous other cases. I agree with the Ninth Circuit’s determination. But even to the extent that the dissent sees error in that determination, the Ninth Circuit conducted precisely the inquiry required by §2254(d)(2) and our precedents. “The principal purpose of this Court’s exercise of its certiorari jurisdiction is to clarify the law.” Caperton v. A.T. Massey Coal Co., 556 U. S. 868, 902 (2009) (SCALIA, J., dissenting). Mere disagreement with the Ninth Circuit’s highly factbound conclusion is, in my opinion, an insufficient basis for granting certiorari. See this Court’s Rule 10.

This little spitting match over a Ninth Circuit habeas grant is not only intriguing on the merits, but also notable for who keeps their tinder dry. I am a bit surprised to see that Justice Thomas is not joining in Justice Scalia's opinion; it also seems interesting that Justice Sotomayor is a lone voice defending the work of the Ninth Circuit in this case.

"A steep drop in crime, but do you feel safer?"

The title of this post comes from the headline of this article run this past weekend in the Los Angeles Times, though the question might well be asked in just about every major city in the nation. Here is how the interesting piece gets started:

A newsroom has its own way of tracking a city's trend toward diminishing crime. Twenty years ago, a reporter tallying crime stats for our newspaper's weekly blotter might sift through dozens of killings on a single weekend. There were more than 1,000 homicides a year. Last year, there were fewer than 300 homicides — and many weekends with no killings.

Ten years ago, reporters working the streets kept mental lists of neighborhoods considered too dangerous to visit alone. Now, no neighborhood is off-limits. That sense of ambient criminal menace is gone.

Los Angeles —- like other big cities around the country — is in the midst of a crime drop so steep and profound, it has experts scratching their heads. Crime fell in 2011 for the ninth year in a row, to levels not seen in Los Angeles since half a century ago. The city had fewer crimes last year — and a million and a half more people — than it did when "Leave It To Beaver" made its debut in 1957.

The reasons are complicated and ripe for debate: better policing and more community involvement; fewer drugs and fuller prisons; an explosion in new technology; and the fading profile of violent gangs. The phenomenon ought to be scrutinized. We need to know what mix of forces has conspired to drive crime down, so we can — in an era of shrinking resources — plan and spend wisely to keep this going.

We also have to ask ourselves: What will this transformation mean? What will we do with all this safety in a city known not so long ago as the capital of drive-by shootings?

Some related posts on the great modern crime decline in California and nationally:

US Sentencing Commission meeting this week to consider guideline amendments

As detailed in this official notice, "a public meeting of the [US Sentencing] Commission is scheduled for Tuesday, January 10, 2012, at 2:00 p.m." And on the official agenda is "Possible Votes to Publish Proposed Guideline Amendments and Issues for Comment."

As reported in this prior post from last summer, the USSC had a lot of high-profile matters on its list of possible priority policy issues for this year's amendment cycle, including continued reviews of the drug and kiddie porn guidelines. I am not expecting to see any blockbuster amendments being proposed this year, but one never knows. But I am inclined to predict (and fear) that the USSC may be especially timid this year because of last fall's House hearing in which the Commission got a lot of grief from congressional Republicans.

Notable paper urging a different model for victim involvement in criminal justice system

Via this post at Right on Crime, I came across this interesting new paper from the Partnership for Safety and Justice about victim involvement in the criminal justice system titled "Moving Beyond Sides: The Power and Potential of a New Public Safety Policy Paradigm." Here is a paragraph describing the goals of the paper and another from the introduction revealing its key themes:

This paper is designed to foster critical dialogue and actual movement toward more proactive and thoughtful collaboration between crime survivor advocates and criminal justice reform advocates who have a shared stake in creating a system focused on long-term, evidence-based policies best equipped to create safe and healthy communities....

When examining the propagation of tough on crime policies, particularly at the state level, certain crime victim advocates have played a powerful role. These victim organizations and activists have created the emotional impetus for the passage of tough on crime policies. Both intentionally and unintentionally, these high-profile “victim advocates” have become the de facto representatives of the victims’ perspective among the media and policymakers, while the authority and scope of their perspectives remain largely unchallenged. What usually goes unnoticed in criminal justice policy debates is the absence of the diversity of victims’ perspectives. The communities most impacted by crime and violence — low-income communities, communities of color, and women — are rarely taken into consideration by these high-profile victim advocates who are primarily coming from a white, male, and middle-class perspective. It is not unusual that the people with privilege and the most access to the system have an easier time getting the system to respond when personally affected; but the most dominant voices among victim advocates don’t reflect the full spectrum of victim experiences and perspectives and are advancing a narrow policy agenda that has actually damaged some communities.

January 8, 2012

Interesting new data on operation of death penalty in Connecticut

Thanks to this New York Times editorial by Lincoln Caplan, which carries the provocative headlined "The Random Horror of the Death Penalty," I saw this fascinating new study by Professor John Donohue concerning the operation of the death penalty in the Nutmeg State. First, from the study: it is titled "Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation from 4686 Murders to One Execution," and here is the start of the abstract:

This study explores and evaluates the application of the death penalty in Connecticut from 1973 until 2007, a period during which 4686 murders were committed in the state. The objective is to assess whether the system operates lawfully and reasonably or is marred by arbitrariness, caprice, or discrimination. My empirical approach has three components. First, I provide background information on the overall numbers of murders, death sentences, and executions in Connecticut. The extreme infrequency with which the death penalty is administered in Connecticut raises a serious question as to whether the state’s death penalty regime is serving any legitimate social purpose.

Specifically, of the 4686 murders committed during the sample period, 205 are death-eligible cases that resulted in a homicide conviction, and 138 of these were charged with a capital felony. Of the 92 convicted of a capital felony, 29 then went to a death penalty sentencing hearing, resulting in 9 sustained death sentences, and one execution (in 2005). A comprehensive assessment of this process of winnowing reveals a troubling picture. Overall, the state’s record of handling death-eligible cases represents a chaotic and unsound criminal justice policy that serves neither deterrence nor retribution.

The Supreme Court has not banned capital punishment, as it should, but it has long held that the death penalty is unconstitutional if randomly imposed on a handful of people. An important new study based on capital cases in Connecticut provides powerful evidence that death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime....

Professor Donohue designed an “egregiousness” ratings system to compare all 205 cases. It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.

The egregiousness scores for those charged with capital murder and those who were not were virtually identical; the nature of the crime bore almost no relationship to how the case came out. Among the 29 who had a death penalty hearing, there is no clear difference in the level of egregiousness for the 17 who got life without parole and the 12 sentenced to death (three eventually had their sentences vacated for various reasons). Among the 32 most awful cases on the four-factor egregiousness scale, only one resulted in a death sentence. Rather than punish the worst criminals, the Connecticut system, Professor Donohue found, operates with “arbitrariness and discrimination.” The racial effect is very evident (minority defendants with white victims were far more likely to be sentenced to death than others), as is geographic disparity. In the city of Waterbury, a death-eligible killer was at least seven times as likely to be sentenced to death as in the rest of the state.

In 1972, the Supreme Court in Furman v. Georgia struck down state death-penalty laws that lacked guidelines on how the penalty should be applied. It found that with only 15 percent of death-eligible murder convictions in Georgia leading to a death sentence, imposition of the penalty was “freakishly” rare — and therefore arbitrary and unconstitutional. The rate in the Donohue study is far more extreme at 4.4 percent.

The court also said in Furman that a death-penalty system must have a “meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Clearly, Connecticut’s system fails this requirement. Because it’s a small state, Professor Donohue was able to conduct a comprehensive study of every capital murder case with a conviction. But Connecticut’s lessons also apply to bigger states, like California, Texas and Ohio, where prosecutors even in neighboring counties use drastically different factors to impose the death penalty.

In 2011, the number of new death sentences imposed in the United States fell by 25 percent to 78, the lowest number since capital punishment was reinstated in 1976. This “freakishly” rare application — among the thousands of murder cases a year — is strong evidence that every state system is arbitrary and capricious. The death penalty in Connecticut is clearly unconstitutional, barbaric and should be abolished, as it should be everywhere.

I may have a lot more to say about the implications of Professor Donohue's research once I have a chance to reads his entire study. But I will begin by suggesting that I do not think Furman can or should be read to hold or even imply that county-by-county differences in the application of the death penalty within a state serve to make the operation of the death penalty unconstitutional. A state's policymakers may surely decide that such geographic differences make for bad policy and should be addressed legislatively; but I do not think the judiciary can or should hold that such differences alone make the death penalty unconstitutional.